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Legal FAQs
By:
Betty Mydland,
Prisoner Activists
02/13/2002 The most common questions we get from those convicted or awaiting conviction.
We present this for informational purposes only.
We are NOT attorneys nor experts in the law. One should be aware that there are never any EASY answers to legal questions. And for the most part, each case must be evaluated on its own merits. In any case, a passionate, seasoned litigator is always your best avenue of recourse.
Listed below are some of the most common questions asked.
1. There was no physical evidence. I was convicted on circumstantial
evidence. What can I do?
2. My attorney was ineffective. He/She had either little or no
experience in my type of case and therefore was not able to provide a
proper defense. What can I do?
3. The court has petitioned for my parental rights to be terminated. What can I do?
4. The court is terminating my parental rights. Do I have a right to
be in court at the hearing?
5. At what point can the court files laches on me?
6. I was denied a change of judge. Can I appeal that
judgment?
7. I got much more time than anyone of my co-defendants. What can I do?
8. I want to change my name and have been told that I cannot do so while incarcerated.
9. I have been wrongfully disciplined in jail/prison. Do I have any other recourse other than within the institution?
10. I agreed to a polygraph during questioning and the results were less than favorable. Is there any recourse after the fact?
11. Divorce
12. I am representing myself in court but because I am not an attorney, I am being told that I do not have the same access to information as I
would if I were an attorney. Is there any way around this issue?
13. What is a Miranda warning?
14. If I am not under arrest, do I have to answer a police officers' questions?
15. Must a police officer always advise a person of their Miranda rights before asking a question?
16. If I am in custody, how do I assert my right to remain silent?
17. Can I waive my Miranda rights?
18. But the police officer said that if I talked, he would help me out.
19. Social Security: Money For Nothing?
20. Some Reasons for Appeal From Criminal Conviction.
Author's Note
1. There was no physical evidence. I was convicted on circumstantial
evidence. What can I do? TOP
Many times people are convicted on circumstantial evidence. There is a
wide range of latitude in the judicial system for these types of
convictions. Although federal law takes precedent over state law, each
state has been empowered to apply its own interpretation and it takes an
appeal in many cases to overturn such a conviction. As such, many factors
need to be considered. Appeals in these types of cases are the best method
of recourse. Each cases will need to be examined in its own merits.
2. My attorney was ineffective. He/She had either little or no
experience in my type of case and therefore was not able to provide a
proper defense. What can I do? TOP
This problem is rampant throughout the judicial system. Particularly
in the case of court appointed counsel. Although there are guidelines set
for effective counsel, it is almost impossible to prove it without a
convincing litigator. The good news is, the laws are changing regarding
this issue. Again this is a case-by-case situation that needs to be
evaluated and assessed before convincing arguments can be brought before
an appeals court for a positive outcome. MORE on Ineffective Counsel
3. The court has petitioned for my parental rights to be terminated.
What can I do? TOP
This has always been the hardest for me to work with. Under "The
Adoption And Safe Families Act of 1972" [ H.R. 867 - 105th Congress
Of The United States] there is little recourse if you are to be
incarcerated for more than 15 months. The Child Welfare System of each
states carries some variance but the outcome is always the same. If you
are incarcerated and your child[ren] are receiving any type of welfare
from the state, then, after the 15 month period, they have a legal right
to petition the court to put the child[ren] up for adoption based on the
federal rules of "The Best Interest Of The Child" guidelines. In
1998 there was a hearing on the ASFA, ref. Senate Hearing 105-461. It can
be viewed at: http://www.join-hands.com/law/.
The "Best Interest Of The Child Standard" varies somewhat from
state to state.
4. The court is terminating my parental rights. Do I have a right to
be in court at the hearing? TOP
Most definitely YES! You also have to be notified by the court as
to the proceeding. At that point go to your law library and fill out an
APPEARANCE form and send it to the court.
5. At what point can the court files laches on me?
TOP
Each sentencing court has a wide latitude as to when to file laches.
However, as long as you can prove that you have been doing SOMETHING in
the process of appealing your case, it is unlikely the court will do so.
6. I was denied a change of judge. Can I appeal that judgment?
TOP
YES! A good litigator, with good information can and usually
does, secure a change of judge. In most cases, particularly in Indiana, a
defendant does not even need to provide a reason. Each state is different
however, and again it is a case-by-case situation.
7. I got much more time than anyone of my co-defendants. What can I do?
TOP
Disparity of sentencing in drug cases has come a long way in the last
few years. The sentencing judges, as usual, have had a wide latitude for
determining sentences in drug cases. However, this is fast changing and I
expect to see it reflected in the prison population. At this point in
time, as with any case, research is needed to determine if
"disparity" is a case-in-point for you.
8. I want to change my name and have been told that I cannot do so
while incarcerated. TOP
Yes you can change your name wile incarcerated. However, DOC will
not recognize it and it won't change on your criminal record.
9. I have been wrongfully disciplined in jail/prison. Do I have any other recourse other than within the institution? TOP
Yes! Although in the even of being wrongfully disciplined, you must
still go through the proper channels. If no satisfaction has been
obtained, you have a right to file a civil suit. In the even that you
choose to go that route, make sure that family, friends, or anyone outside
the institution is aware of your intentions as this will aide in
minimizing retaliation on the part of the institution.
10. I agreed to a polygraph during questioning and the results were less than favorable. Is there any recourse after the fact? TOP
This has always been a sticky wicket. A lot depends on the
circumstances surrounding your case. The first question is, were you under
arrest when you were asked to submit to a polygraph. If not, then
typically, this action can be challenged and in some cases, it cannot be
used. The thing to remember is that the New York Supreme Court has held
that polygraph examinations are still considered unreliable scientifically
and therefore the state does not take much stock in them. This is a
precedent and can be used in other states as well. Again, the main issue
is your case and would need to be evaluated on its own merit.
11. Divorce:
TOP
If you are incarcerated and want to file a divorce, you
must be able to have the paperwork signed by your spouse. This means that
you must know where they are. They must sign the papers and send them back
to you at the institution so that you can then send them to the proper
court. A contested divorce in any sense, or the whereabouts of the spouse
are grounds for not obtaining a divorce while incarcerated.
12. I am representing myself in court but because I am not an attorney,
I am being told that I do not have the same access to information as I
would if I were an attorney. Is there any way around this issue?
TOP
YES! In order to have the same authority as an attorney in
obtaining information and access to information, you must file a Baretta
Motion. I do not know of any attorney that will be open to explaining this
as it takes $$$ out of his/her pocket. We have the information available
at Ex-Offender. Please contact us if you are considering this course of
action.
13. What is a Miranda warning? TOP
A Miranda warning advises people of their constitutional right not to
answer questions or to have an attorney present before answer any
questions.
14. If I am not under arrest, do I have to answer a police officers'
questions? TOP
No. Unless you are placed under arrest you are free to leave at any time.
However, if a police officer stops you while you are walking, and asks you
for identification, it is probably in your best interest to provide such
information. The courts have allowed police officers to detain people for
extended periods of time in an effort to determine the identity of the
individual.
EXAMPLE: Tommy is walking down the street and approached by Officer
Doright. Officer Doright begins to question Tommy about a bank robbery
that happened a few days ago. The conversation looks like this:
Officer Doright: Hey, excuse me, I would like to ask you a few
questions.
Tommy: um, ok, what is this about?
Officer Doright: I`m investigating a robbery that happened a few days
ago, I thought you might be able to give me some information.
Tommy: I just got back in town today from Europe, I really don`t think
that I can help.
Officer Doright: You just got back, that`s interesting, you fit the
description of the robber that the bank teller provided.
Tommy: Excuse me Officer, am I under arrest?
Officer Doright: Umm, well no, but if you have something to say, I
promise to help you out.
Tommy: No thanks Officer, you have a nice day. Tommy then continues
with his walk home from the airport.
15. Must a police officer always advise a person of their Miranda rights
before asking a question? TOP
No. The Miranda warning is only in effect during a custodial
interrogation. This means that the person being questioned is in custody
or in an environment in which the person does not believe that he is free
to leave.
For example: Officer Jones is investigating a robbery at the local
supermarket. The cashier indicates that a patron named Mary Smith may have
seen the robber. When Officer Jones interviews Mary, Mary makes statements
implicating herself in the robbery as a lookout. Can Mary`s statements be
used against her later, even though she was not read her Miranda Warning?
The answer is yes, because Mary was not in custody when she was being
asked the questions. Therefore, Mary was free to leave if she wanted to.
16. If I am in custody, how do I assert my right to remain silent? TOP
A suspect who has been arrested need only say I want to speak with an
attorney or I have nothing to say now. If the police continue to question
the suspect, the police have violated the suspect`s 5th Amendment rights.
Anything that the suspect says after the violation is inadmissible as
evidence in court.
17. Can I waive my Miranda rights? TOP
Yes. If you have been arrested, and you have been given your Miranda
warning, then anything that you say can and will be used against you in
court.
18. But the police officer said that if I talked, he would help me out. TOP
This is something police officers always say. Police officers have no
control over what happens to you after you have been arrested. The
determination of what you will be charged with, and how you will be
sentenced, is up to the prosecutor and the presiding judge.
Author's Note:
TOP
If you
are passionate about your case, and most of us are, then, being armed with
the knowledge of the law, and the insight into the mindset of your
sentencing court, you too, can be a passionate litigator in your own
case. The only thing you need is paralegal help to search the parts
of the law that you do not have access to, or to write your brief for you
in a manner that will convince the court of the genuineness of your
appeal.
As a lay advocate with a 48% win rate within the Department Of Corrections
when defending inmates before the Disciplinary Committee, I have come to
develop a passion that the Warden of my institution said "is
unsurpassed by anyone in my 30 years at this institution." A
feather in my cap? Well, it depends on how you look at it I guess.
As
a result, my passion is to help empower those with convictions, or
awaiting convictions, with the necessary tools and knowledge that will
enable them to leave a mark on the trial courts and be a glimmer of hope
to those who still wither away behind the walls of cement and fences of
razor wire.
| The author,
Betty Mydland, received her Master's Degree in Theology from Gateway
Christian College in 1974, and received an Associate’s Degree in
Database Management and Research from Ivy Tech in 1992. In 1998 she
earned a certification as a paralegal.
For 21 months she was a law clerk
and lay advocate at the Rockville Correctional Facility for Women in
Indiana, and had a win rate of 48%. The head of the institution said that
"Ms. Mydland was the first to obtain that percentage in the 30 years
she had been there."
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Ms. Mydland is also teaching a
Life Skills class to those recently released or placed on probation at the
Elkhart County Probation Department.
You can reach
Betty Mydland HERE
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